By John V. Berry, www.berrylegal.com
We have represented a number of congressional employees over the years and believe that it is well past time to reform the Congressional Accountability Act (CAA). This is the law that governs the complaint procedure against Members of Congress and congressional employers in cases involving sexual harassment, discrimination, retaliation and other related labor and employment matters.
The CAA is also the law that has played a part in protecting Members of Congress and other congressional employers from having to pay or disclose settlements involving discrimination or sexual harassment. This law is flawed and badly needs to be changed. Changes to the law have been proposed. A copy of the CAA’s current procedures is found here. The CAA covers 13 employment related laws, but the major problems in the law relate to the law’s handling of sexual harassment and discrimination cases.
Current Problems with the CAA
As we have seen through the media, the problems with the CAA are many. The law itself was passed very quickly, basically immediately after the Republicans took over the Congress in 1995. It was essentially an attempt to place Congress under similar (not the same) rules as other federal employers, but with built in protections for Members of Congress in order to protect them. The law was not debated extensively and many loopholes were left when enacted. The law also specifically left out the ability of congressional employees to challenge improper employment terminations or adverse actions; rights given to most other federal employees through the Merit Systems Protection Board (MSPB). Unless a congressional employee is covered by labor union rights, they have no protection against unjust, but legal terminations.
3 Major Problems with the CAA
A. The Time for Claims Take Too Long
The CAA takes too long to address claims, often discouraging congressional staffers from even filing complaints. Under the CAA, one cannot start the process of initiating a complaint of sexual harassment or discrimination for at least 30 days while they wait in a holding period known as the counseling process. A regular federal employee can initiate such a complaint immediately. When that occurs, regular federal agencies may take immediate remedial action against illegal practices. This is not the case for Congress.
Once a congressional staffer waits 30 days in the holding period they have to proceed to mandatory mediation with the congressional employer. This is not required for regular federal employees. This is a process that can take at least 30 days or more. If mediation succeeds, it is confidential. If mediation fails, which it often does, then the next step is for the congressional staffer to wait another 30 days to file an administrative complaint or go to federal district court. Then after filing a complaint, the process in the courts can take years, or the congressional staffer can agree to expedite their case through the in house, confidential process which only becomes known if the case decision is appealed.
Congress should change the CAA to enable congressional employees and staffers to have the same rights as normal federal employees. Doing so might put an end to serious cases of sexual harassment, retaliation or discrimination rather than allow it to linger while the process unfolds.
B. Members of Congress Have Free Legal Representation.
Furthermore, Congress fully funds their own legal defense counsel heavily. For instance, there have been cases where as many as 3 congressional attorneys have been assigned to one case that we have handled against a congressional entity. When congressional employers assign so many attorneys to one case they argue every little possible procedural hurdle at a congressional staffer, stifling their ability to bring legitimate claims. There have been cases where congressional employers have even spent weeks arguing over whether a person could bring an employment claim because they made a small error in correct title of a congressional employer.
In sum, Congress basically funds the equivalent of huge law firms through House and Senate Employment Counsels’ Offices to protect themselves in every case. As a result, there is often no way that a congressional staffer can usually afford to fund adequate legal representation in which to prevail on their regular salary. This differs from the regular federal sector where federal agency attorneys are generally not assigned, in most cases, until a complaint moves to the hearing process. Such a process not only saves money, it enables an employee the ability to challenge unlawful sexual harassment or discrimination before being challenged by employer defense counsel.
One of the most important fixes for the CAA would be for Congress to be held accountable for funds used to pay inside and outside counsel to defend against these cases. An even better fix would be for Members of Congress and other congressional employers to be held accountable for their own legal fees in defense from their own funds or budgets. If congressional employers had to pay for their own legal fees, they may start to resolve and address sexual harassment complaint earlier and remediate problems. As it stands now, that is not the case.
C. Members of Congress Have a Private Fund to Pay Settlements and Judgments
The CAA pays not only for congressional employer’s attorney’s fees but also for settlements or judgments. In other words, a Member of Congress or other congressional employer can engage in egregious behavior and then not have to pay for the consequences of their actions. This type of protectionism needs to stop. Currently, Congress has set aside a private account to pay for these costs from a special Treasury Department fund created by the 1995 CAA. Members of Congress and congressional employers should have to pay these costs through their own funds. This, more than anything, might do something to stem what has apparently been a much worse work environment than was even thought of before.
New changes in the CAA have been proposed. One Congressman has proposed making congressional employers responsible for claims. Another Congressman has proposed exposing the settlements made under the CAA and also requiring them to pay back the treasury. The bottom line is that Congress needs to do more than simple give themselves training, they need to make the CAA and Office of Compliance function more like the Equal Employment Opportunity Commission and provide better and more efficient access to putting an end to unlawful sexual harassment and discrimination.
Our law firm represents and advises congressional employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.